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Common Defense Errors
Chris Dominic
Oregon Association of Defense Counsel, Winter 2006
Chris Dominic highlights some strategic errors that are commonly made and can be avoided. Some of the errors highlighted are:
--Choosing the technical case over the persuasive narrative;
--Using arguments your social group finds persuasive;
--Assuming that your witnesses will be interpreted the way you interpret them.
Download Document:
Common Defense Errors Winter 06.pdf
The Secret to Winning Over Jurors Away From Home: Just Be Yourself
Jill D. Schmid, Ph.D. and Chris Dominic
Oregon Association of Defense Counsel, Spring 2006
Jill Schmid, Ph.D. and Chris Dominic discuss the temptation to over focus on source similarity issues when addressing juries outside of one's home venue. Five specific suggestions are made as an alternative.
Download Document:
Jurors Away From Home OADC 2006.pdf
Strategy, Planning Lead to Success
Theodore O. Prosise, Ph.D.
King County Bar Bulletin, October 2005
Ted Prosise, Ph.D. discusses methods for getting an advantage in litigation. Specifically they discuss: Using a Courtroom Setting; Increasing Witness Comfort; Developing the Case Story Early; and Working with Consultants.
Download Document:
Strategy 1005.pdf
Dealing with Damages
Chris Dominic
King County Bar Bulletin, October 2003
Chris Dominic provides an overview of many of the factors involved in damages and juror decision making. The article briefly discusses the variables of: case characteristics, venue, motivation, individual juror attitudes, group dynamics, characteristics of the decision makers, and jury instructions.
Download Document:
Dealing With Damages 1003.pdf
Competitive Advantage: Five tips on the effective use of trial consultants
Bruce Boyd and Chris Dominic
Oregon State Bar Bulletin, October 2002
The question put to Bruce Boyd and Chris Dominic was "how does an attorney work best with a trial consultant." They answer in this article with five tips on how to get the most out of working with jury/trial/litigation consultants.
Download Document:
Competitive Advantage 1002.pdf
Managing the Message: Visual Case Presentation
Theodore O. Prosise, Ph.D.
King County Bar Bulletin, November 2004
Ted Prosise, Ph.D. suggests how to make case presentations more persuasive and interesting wtih effective visual advocacy for both alternative dispute resolution and trial.
Download Document:
Visual Case Presentation 1104.pdf
Your Witness--Prepare Before Stepping Into the Sun
Theodore O. Prosise, Ph.D.
King County Bar Bulletin, July 2004
Theodore O. Prosise, Ph.D. shares four principles that help you and your witness testify more credibly.
Download Document:
Your Witness 0704.pdf
Jury Selection: Dealing with Diversity and Hidden Bias
Dennis W. Brooks
King County Bar Bulletin, January 2006
Dennis Brooks discusses how to compensate for the inability or unwillingness of jurors to address their biases. It is the first part of a 2 part series.
Download Document:
Jury Selection-Hidden Bias 0106.pdf
Jury Selection: Key Elements of Success
Dennis W. Brooks
King County Bar Bulletin, February 2006
Dennis W. Brooks addresses the effective planning for and execution of jury selection in this second part of a two-part series.
Download Document:
Jury Selection-Key Elements of Success 0206.pdf
Us and Them: A comparison of juror attitudes in Oregon and the Northwest
Chris Dominic
Oregon State Bar Bulletin, December 2003
Chris Dominic compares Oregon juror attitudes with: Northwesterners; Washingtonians; as well as a comparison of urban to rural Oregon juror attitudes. The findings of the articles are reported from the Tsongas Litigation Consulting 2003 Northwest Juror Attitude Survey.
Read Article On-line:
www.osbar.org/publications/bulletin/03dec/jurors.html
What Washington Jurors Really Think
Chris Dominic
Washington State Bar News, December 2003
Chris Dominic provides a broad overview of the findings of the Washington State elements of the Tsongas 2003 Northwest Juror Attitude Study. The study is the first, large sample size study of juror attitudes in the Northwest.
Read Article On-line:
www.wsba.org/media/publications/barnews/2003/dec-03-dominic.htm
Ten Key Questions: Evaluating the Quality of Mock Trial Research
Theodore O. Prosise, Ph.D.
For the Defense - DRI, August 2007
Ted Prosise, Ph.D. presents a systematic method for assessing mock trial research to build confidence in the results and serve the client.
Download Document:
FTD-0708-ProsiseNew.pdf
The Powerful and Mysterious American Jury: Common Misunderstandings by Attorneys, Judges and the Public
Joyce E. Tsongas and Arthur D. Monson, Ph.D.
Washington State Bar News, August 2002
Joyce Tsongas and Art Monson, Ph.D. sum up many of the common misunderstandings of juries that many have. The article was created from the combined 45 years of experience of the authors.
Read Article On-line:
www.wsba.org/media/publications/barnews/archives/2002/aug-02-powerful.htm
Keys to Success in Arbitration
The Advantage: 4.08: V.5, 1st Edition
With fewer cases going to trial, there has never been a better time to reconsider and redesign one’s litigation strategy. Although there are a number of tools and techniques gleaned from jury trial experience that should be applied to arbitration hearings, ...
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Sex in Court
The Advantage: 12.07: V.4, 3rd edition
Pants or dresses? Navy or gray? Heels or flats? Is this diamond too big? Too small? These questions skirt the issue, so to speak. What’s really being asked is “How can a woman lawyer best represent her client in a context that has been dominated by ...
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A View From the Bench: A series of informal interviews with the men and women who see the most courtroom action: our state and Federal Judges
The Advantage: 9.07: V.4, 2nd edition
A judge’s rulings on motions and objections can provide an immediate reading of the judge’s view of very specific issues. Occasionally, a judge will reveal opinions about the nature of trial or the conduct of counsel-- some of which may not be what you ...
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Shadow Juries: A Powerful Tool to be Handled With Care
The Advantage: 9.07: V.4, 2nd edition
A “Shadow Jury” can have several different meanings depending upon the attorney or the consulting firm using the term. Typically, Shadow Juries involve the use of four to six people who have been recruited from the trial venue and have been screened ...
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Jurors' Common Wisdom: "I don't know...I'm just the CEO"
The Advantage: 5.07: V.4, 1st edition
In our last “Common Wisdom” column, we told you that many jurors assume that plaintiffs’ attorneys take a third of the money awarded and often adjust the award accordingly. Another issue jurors insist they know as well as fee arrangements relates to ...
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Witness Credibility: A multi-dimentional construct
The Advantage: 5.07: V.4, 1st edition
Anyone who has tried enough cases has probably learned what is meant by the adage, “Even the best case can be lost when a witness fails on the stand.” The days following a trial where this has happened are often consumed with trying to assess what went ...
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Arming Your Jurors for Deliberation
The Advantage: 12.06: V.3, 3rd edition
Over the past fifty years, an extensive amount of literature has been devoted to an examination of the impact of “extra-legal” factors on a jury’s decision-making process. “Extra-legal” factors are those factors that lie outside the scope of what is ...
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Insider Tip: Meeting your consulting needs
The Advantage: 12.06: V.3, 3rd edition
As 2006 comes to a close, we reflect on the various work our firm has provided throughout the year. Of particular note is the number of seminars (CLE presentations, seminars for national and regional law organizations, etc.) that our consultants have ...
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Jurors' Common Wisdom: "Attorneys take a third"
The Advantage: 12.06: V.3, 3rd edition
As much as we’d like to think that jurors adhere to the Court’s instructions not to consider attorneys’ fees when discussing damages, jurors invariably do. Our firm has conducted over 400 mock trials (approximately 1200 mock jury panels), and with very ...
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Fundamentals of Opening Statement Preparation: Speech 101
The Advantage: 8.06: V.3, 2nd edition
Whatever else your opening statement might be, it is fundamentally “just a speech.” This is in no way meant to minimize the importance of an opening or make light of the pressure or anxiety felt when faced with the daunting task of writing one. It ...
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Industry Update: Trial consultants practicing more prior to ADR
The Advantage: 8.06: V.3, 2nd edition
On a recent case a lively discussion ended abruptly when a member of the trial team innocently asked, “What is our plan for mediation anyway?” Upturned mouths went straight and the silence became awkward as they realized that for all of their hard work ...
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How Will My Jury Arrive at Damage Figures?
The Advantage: 4.06: V.3, 1st edition
The sheer amount of information that jurors are asked to process in a trial is daunting for even some of the most sophisticated minds. Fortunately, humans seem to be pre-programmed for such tasks in their ability to cognitively store information by ...
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You Have More Important Things to Worry About
The Advantage: 4.06: V.3, 1st edition
A particularly common scenario for trial consultants involves an attorney that is about to present a case in front of a jury vexing over presentational details such as which suit to wear. These questions typically merit a simple response: “You have ...
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Indicators of Quality in Pretrial Small Group Research
The Advantage: 12.05: V.2, 3rd edition
All focus group and mock trial research is not created equal. With the growing prevalence of focus groups and mock trials as assessment tools prior to Alternative Dispute Resolution, it is important that attorneys are aware of what the indicators of ...
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Practice Tips: Fighting the defensiveness demon
The Advantage: 12.05: V.2, 3rd edition
“Attack Back!” – It’s usually a person’s first response to an attack. It is how the game is played—an offense and a defense. However, when you are looking to a jury or to the court for a win, simply defending against the opposition’s attacks does not ...
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Tsongas Expands Seattle Presence: Opens new office and state-of-the-art facility
The Advantage: 8.05: V.2, 2nd edition
The Mock Courtroom/Focus Group facility at Tsongas Litigation Consulting - Seattle is the only one of its kind in the Northwest, and one of the few in the nation specifically designed for conducting mock trials and other pretrial research. Tsongas’ ...
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A View From the Bench: Interview with the Honorable R.E. Jones, Senior Judge of the US District Court of Oregon
The Advantage: 3.05: V.2, 1st edition
Rulings on motions and objections provide an immediate reading of the judge’s view of very specific issues. Occasionally, a judge will reveal observations about the nature of trial or the conduct of counsel – some of those may not be what you wanted ...
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Voice of Experience: "Does closing really make a difference?"
The Advantage: 3.05: V.2, 1st edition
Does your closing argument really make a difference? Yes, but probably not for the reasons you think.
In our December 2004 issue of The Advantage, we explained that despite common wisdom, jurors do not make up their minds after opening stateme ...
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Debunking a Common Myth: Jurors DO NOT make up their minds after opening
The Advantage: 12.04: V.1, 3rd edition
A common myth among the legal community is that jurors make up their minds about a case at the end of opening statements. The origin of this myth can be traced largely to a misreading of the 1966 University of Chicago jury study by Kalven and Zeisel, ...
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Graphics Update: Frequently asked questions about graphics
The Advantage: 12.04: V.1, 3rd edition
1. Aren’t graphics expensive?
Good visuals can be used in every phase of litigation: to help illustrate your arguments brief or motions, to clarify your case strengths for the mediator, and/or to send a message to the opposition that you are ser ...
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Practice Tips: Starting Your Opening with the Silver Bullet
The Advantage: 12.04: V.1, 3rd edition
Our April 2004 Newsletter article, “The Case Story and Juror Reasoning,” explained why composing your opening in the form of a story is so important. We have long recommended condensing that story to a single, high impact paragraph we call a “Silver ...
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Voice of Experience
The Advantage: 12.04: V.1, 3rd edition
A common myth among the legal community is that jurors make up their minds about a case at the end of opening statements. The origin of this myth can be traced largely to a misreading of the 1966 University of Chicago jury study by Kalven and Zeisel, ...
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Practice Tips: "Do I need a focus group or a mock trial"
The Advantage: 4.04: V.1, 2nd edition
The term “focus group” is widely misused to describe any pre-trial jury simulation research. We often have clients asking for focus group research when what they really need is a mock trial. Tsongas, and many practicing trial consultants, make a clear ...
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The Case Story and Juror Reasoning
The Advantage: 4.04: V.1, 2nd edition
In a recent mock trial, learning jurors found two emails more persuasive than a statistically significant academic study surprised our clients. Both the emails and the study suggested the same thing. One might think scientifically based evidence would ...
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The Slippery Slope of Allowing Discovery of Attorney Work Product
The Advantage: 4.04: V.1, 2nd edition
Imagine that you are in your conference room, preparing a client for an upcoming trial, when your paralegal comes in to give you a message. Off the cuff, you ask him or her what a jury might think about the client’s appearance, as a witness. The next ...
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Incorporating Your Themes While Identifying Your Strikes
The Advantage: 1.04: V.1, 1st edition
So you want to “sell your case” in voir dire? Despite many attorneys’ desire to instill their themes during jury selection, Tsongas has long taken the position that lawyers need to minimize the time they spend talking and maximize the time the spend ...
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Industry News: Runaway Jury as a sign of the times
The Advantage: 1.04: V.1, 1st edition
There are a few arguments over when the field of “jury consulting” began. Most agree that the field as we know it began in the early 1970s when social scientists worked assisted attorneys in the Harrisburg Seven trial. Since then we have seen incremental ...
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Research Services Profile: Community Attitude Survey
The Advantage: 1.04: V.1, 1st edition
The community attitude survey is an extremely powerful social scientific tool that has proven to be quite useful in the world of litigation consulting. In its most common form, the telephone survey, it allows one to poll a large number of people, in ...
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